Citation Nr: 1504559
Decision Date: 01/30/15 Archive Date: 02/09/15
DOCKET NO. 12-33 522A ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Muskogee, Oklahoma
THE ISSUE
Entitlement to eligibility for the Veterans Retraining Assistance Program (VRAP).
REPRESENTATION
Appellant represented by: California Department of Veterans Affairs
ATTORNEY FOR THE BOARD
L. Kirscher Strauss, Counsel
INTRODUCTION
The appellant served honorably on active service from January 1977 to February 1981 and from April 1981 to September 1984. His last period of service from December 1986 to July 1987 resulted in a discharge under other than honorable conditions.
This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2012 administrative decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma.
FINDING OF FACT
The appellant's last period of active service was terminated by a discharge under other than honorable conditions due to cocaine use, being absent without official leave (AWOL) while restricted to the Naval Air Station, and wrongful drinking of alcohol; the offenses were not minor.
CONCLUSIONS OF LAW
1. The appellant's discharge was under dishonorable conditions. 38 U.S.C.A.
§ 5303(a) (West 2014); 38 C.F.R. § 3.12(d) (2014).
2. The character of the appellant's last discharge from service is a bar to qualification for VRAP. 38 U.S.C.A. § 5303 (West 2014); 38 C.F.R. §§ 3.1(d), 3.12 (2014); VOW to Hire Heroes Act of 2011, Pub. L. No. 112-56, 125 Stat. 713,
§ 211(e)(1)(B) (Nov. 21, 2011).
REASONS AND BASES FOR FINDING AND CONCLUSIONS
I. Duties to Notify and Assist
Because this case involves a legal question regarding whether the appellant has legal standing to apply for VA benefits, the Veterans Claims Assistance Act (VCAA) is not applicable to this appeal.
However, the Board notes that the appellant has been afforded every opportunity to submit evidence in support of his claim. The RO sent the appellant a statement of the case (SOC) in November 2012 that provided him the specific reasons the claim had been denied as well as a copy of the applicable regulations. The appellant had ample opportunity to respond before the appeal was certified to the Board for review.
In any event, the appellant has not identified any prejudice due to error in the content or timing of the notice provided. See Shinseki v. Sanders, 129 S.Ct.1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination).
The appellant has been advised of his right to representation and his right to a hearing prior to adjudication. VA medical examination is not required because there are no medical issues associated with the claim. The appellant has not identified, and the evidence of record does not suggest, that there is any existing evidence that should be obtained before the Board proceeds to adjudicate the appeal.
Under these circumstances, the Board finds that the appellant is not prejudiced by the Board proceeding at this juncture with an appellate decision on the question of whether the character of his discharge serves to bar his claim for the VA benefit claimed on appeal.
II. Criteria and Analysis
To participate in the Veterans Retraining Assistance Program (VRAP), which ended March 31, 2014, an eligible veteran is one who was last discharged from the Armed Forces under conditions other than dishonorable. See VOW to Hire Heroes Act of 2011, Pub. L. No. 112-56, 125 Stat. 713, § 211(e)(1)(B) (Nov. 21, 2011).
Under governing law, a discharge or release from service is considered to have been issued under dishonorable conditions in certain circumstances as specified in 38 C.F.R. § 3.12(b) unless it is found that the person was insane at the time of committing the offense causing such discharge or unless otherwise specifically provided by statute.
There are two types of character-of-discharge bars to establishing entitlement to VA benefits: "statutory bars" under 38 C.F.R. § 3.12(c) and "regulatory bars" under 38 C.F.R. § 3.12(d). Insanity is a defense against either a statutory bar or a regulatory bar. 38 C.F.R. § 3.12(b). The circumstances of "statutory bars" as defined by 38 C.F.R. § 3.12(c) do not apply to this appeal.
A discharge or release because of willful and persistent misconduct, or other specified offenses, is considered to have been issued under dishonorable conditions and is a regulatory bar to establishing entitlement to VA benefits. 38 C.F.R. § 3.12(d)(4). This includes a discharge under other than honorable conditions, if it is determined that it was issued because of willful and persistent misconduct. A discharge because of a minor offense will not, however, be considered willful and persistent misconduct if service was otherwise honest, faithful and meritorious. Id. However, "offenses that would interfere with the appellant's military duty, indeed preclude their performance...are not minor." Stringham v. Brown, 8 Vet. App. 445, 448 (1995); see also Cropper v. Brown, 6 Vet. App. 450, 452-53 (1994).
The claims file contains the DD Forms 214 from the appellant's first and second periods of service, each characterized as honorable. A discharge under honorable conditions is binding on VA as to the character of discharge. 38 C.F.R. § 3.12(a).
In July 1993, the National Personnel Records Center (NPRC) verified that the character of the appellant's discharge from active service for the period from December 1986 to July 1987 was under other than honorable conditions. The NPRC provided to the Los Angeles RO the "facts and circumstances" documents or service personnel records surrounding the discharge. Those documents reflect that in May 1987, the appellant received a non-judicial punishment that included restriction to the Naval Air Station for 45 days and a reduction to paygrade E3 for wrongful use of cocaine the previous month. However, he went AWOL for a day in early May while on restriction. Later in May 1987, while still restricted to the limits of the Naval Air Station, he failed to obey the restriction "by wrongful drinking [of] alcoholic beverages." Non-judicial punishments for the latter offenses included an additional reduction to paygrade E2. Other service personnel records from his prior periods of service document non-judicial punishment for stealing a comb in May 1977 and for wrongful use of a habit forming narcotic drug, cocaine, in July 1984.
A post-service VA medical certificate dated in August 1993 reflects the appellant's admission of chronic alcohol abuse beginning at age 19 [since 1976 based on his age] and cocaine abuse since age 28 [since 1985 based on his age].
In a May 1994 administrative decision, the Los Angeles RO concluded that the appellant's discharge for the period of service ending in July 1987 was a bar to VA benefits. The decision explained that the discharge from the third period of service was considered to have been issued under dishonorable conditions. In particular, the RO cited the non-judicial punishments accepted for cocaine use in April 1987 and the two non-judicial punishments in May 1987 for a period of AWOL and disobeying lawful orders and determined that the violations were not considered to be minor in nature and were indicative of willful and persistent misconduct. The RO also concluded that insanity was not an issue. The RO notified the appellant of the decision in a separate letter the same month, also advising him of the option to seek a correction or revision to the character of his discharge.
The August 2012 decision denied VRAP benefits because the appellant's last discharge was dishonorable. In his September 2012 notice of disagreement, the appellant indicated that he did not know that the other than honorable discharge for his last period of service was considered dishonorable by VA standards. He remarked that he intended to seek a "discharge upgrade" and "should have addressed the [other than honorable] discharge years ago." To date, VA has not received any notice from the appellant regarding any change in the character of his discharge from his final period of service.
In correspondence received with his December 2012 substantive appeal, the appellant argued that the determination that his last period of service was dishonorable was incorrect. He acknowledged his understanding that a requirement for VRAP eligibility includes the "last discharge[] from active duty service in armed forces under conditions other than dishonorable." From there, he cited five types of discharges: honorable, general, other than honorable, bad conduct, and dishonorable. Next, he appeared to suggest that because the types of military discharge include both "other than honorable" and "dishonorable," his other-than-honorable discharge should not be characterized as dishonorable because they are distinct classifications.
Having reviewed the evidence of record and the appellant's contentions, the Board finds the appellant's discharge under other than honorable conditions was issued due to willful and persistent misconduct in service. Consequently, his discharge is considered to have been issued under dishonorable conditions and is a regulatory bar to establishing entitlement to VA benefits, including VRAP, based on that period of service. 38 C.F.R. § 3.12(d)(4).
As noted by the service personnel records and the May 1994 administrative decision, the appellant was punished for three separate offenses under the Uniform Code of Military Justice (UCMJ): cocaine use, going AWOL for a day while restricted to the Naval Air Station, and wrongful drinking of alcohol while on restriction. In addition, post-service medical evidence documents his admission of alcohol and cocaine abuse beginning prior to his final period of military service and continuing after service.
For VA purposes, willful misconduct includes the abuse of alcohol or drugs. See 38 U.S.C.A. § 105; 38 C.F.R. §§ 3.1(m), 3.301(d). The simple drinking of alcoholic beverage is not of itself willful misconduct. 38 C.F.R. § 3.301(c)(2). Alcohol abuse is defined as the use of alcoholic beverages over time, or such excessive use at any one time, sufficient to cause disability to or death of the user. 38 C.F.R. § 3.301(d). Similarly, the isolated and infrequent use of drugs by itself will not be considered willful misconduct; however, the progressive and frequent use of drugs to the point of addiction will be considered willful misconduct. 38 C.F.R. § 3.301(c). Drug abuse means the use of illegal drugs. § 3.301(d).
Here, considering that the appellant had admittedly been abusing alcohol since 1976 and cocaine since at least 1984 (based on a service personnel record from his second period of service) and reported that he continued to abuse alcohol and cocaine after service, it is reasonable to infer that his use of alcohol and cocaine use had progressed to the point of addiction by the time he received non-judicial punishments for his cocaine use and wrongful alcohol consumption in 1987. These facts support the conclusion that his misconduct during his final period of service was persistent and willful.
In addition, the Board acknowledges that the appellant had two previous enlistments that totaled 7 years and 6 months of honorable service. However, even affording the appellant due credit for his previous honorable service, the Board cannot consider the commission of three UCMJ offenses to have been "minor" under the criteria of 38 C.F.R. § 3.12(d)(4) because the use of alcohol and cocaine would at least interfere with the appellant's military duties and his absence while on AWOL would preclude performance of his duties. See Stringham, 8 Vet. App. at 448 (defining "a minor offense"); Cropper, 6 Vet. App. at 452-53. In fact, his punishments that included two reductions to his paygrade reflect the severity of his misconduct.
As a final consideration, there is nothing of record that indicates, and the appellant does not contend, that he was insane at the time he committed the offenses that resulted in his other than honorable discharge.
Based on the evidence and analysis above the Board finds the appellant's last period of service was under dishonorable conditions. Accordingly, the criteria for qualification for VRAP are not met and the claim must be denied.
In reaching the conclusions above, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim for qualification for VRAP benefits, that doctrine is not helpful to the Veteran. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990).
ORDER
Entitlement to eligibility for VRAP is denied.
____________________________________________
SONNET BUSH
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs